The Origination Clause Challenge to Obamacare
As some of you may know, there is a case pending in the DC Circuit arguing that the Affordable Care Act is an unconstitutional revenue bill that originated in the Senate. The District Court rejected this claim, but Randy Barnett argues forcefully in this post over on Volokh that the Origination Clause argument should be taken seriously. The Act started as a House Bill, but was then replaced in its entirety by the Senate in the drafting process. If this is permissible, then origination is nothing more than a formality. This cannot be consistent with the original understanding of the provision, the argument goes, and the Supreme Court has said that the Origination Clause is justiciable.
I want to raise two questions about this challenge. First, how much should we care about the fact that the Supreme Court has never invalidated an Act of Congress for violating the Origination Clause? Sometimes I think legal academics (and I’m guilty of this as well) act too much like a job placement service for unemployed constitutional clauses. (“You have a superb resume Mr. Contracts Clause. Out of of work since 1934? No problem–I’ll make some calls.”) The complete absence of the Origination Clause from modern constitutional thought must mean something other than “The Constitution has been betrayed.”
Second, at what point do reliance interests make invalidating the entire Affordable Care Act inappropriate? The Supreme Court would not decide this case (if they take it) until next year at the earliest. Would a decision at that point striking down the Act cause too much chaos to be the right thing to do? It’s easy to say no because the law is the law, but stare decisis stands for a different understanding of the importance of reliance interests.
Finally, my understanding of the Chief Justice’s holding in NFIB v. Sebelius is that five Republican Justices should not invalidate the signature law of the Democratic Party over the objections of four Democratic Justices. That principles covers the Taxing Clause, the Origination Clause, or the Duty of Tonnage Clause.